Burton v. Moulder

• Decision Date: 14 January 1952
• Docket Number: No. 1,No. 42456,42456,1
• Citation: 245 S.W.2d 844
• Parties: BURTON v. MOULDER
• Court: Missouri Supreme Court

Page 844

245 S.W.2d 844

BURTON v. MOULDER.

No. 42456.

Supreme Court of Missouri, Division No. 1.

Jan. 14, 1952.

Rehearing Denied Feb. 11, 1952.

Alfred H. Osborne, and Robert B. Sympson, Kansas City, for appellant.

Shughart & Thomson, Harry P. Thomson, Jr., Frank J. Stark and John M. Kilroy, all of Kansas City, for repondent.

VAN OSDOL, Commissioner.

In this action for personal injuries a jury returned a verdict for plaintiff for $12,500; but the trial court sustained defendant's after-trial motions, and rendered judgment for defendant in accordance with defendant's former motion for a directed verdict and, in the alternative, granted a new trial. Plaintiff has appealed.

Plaintiff's claim arose out of an automobile collision in Kansas. Upon this appeal, we have the primary question--was plaintiff, in the circumstances, contributorily negligent as a matter of law?

The automobile of plaintiff and that of defendant collided at about 7:40 o'clock the morning of March 23, 1948, at the intersection of White Eagle Road and Chrysler Road in the Fairfax District of Kansas City, Kansas. Plaintiff was traveling east in his 1941 Ford on White Eagle Road; and defendant was traveling north in his 1937 Plymouth on Chrysler Road. According to the testimony of plaintiff, the collision occurred on the north side of White Eagle Road, and when the front end of plaintiff's car was three or four feet across the east line of Chrysler.

White Eagle and Chrysler Roads intersect at an approximate right angle. Both of the highways are paved, the pavements being twenty-four feet in width. At the time, a 'shop' sign was located on the south side of White Eagle Road at a point twenty-five feet west of the west line of Chrysler, and a 'slow' sign was situate on the east side of Chrysler at a point 320 feet south of the south line of White Eagle Road.

Plaintiff testified that, as he approached the intersection from the west, he stopped near the stop sign located twenty-five feet west of Chrysler. 'I was somewhere between the west edge of Chrysler Road and the stop sign. I don't know just where I stopped in there. * * * Maybe the back end of my car was at the stop sign, maybe the center of it was.' Just before or when his car came to a standstill, plaintiff looked northwardly and then looked southwardly and saw defendant's vehicle approaching. Plaintiff stated defendant's car was moving at fifty miles per hour and was 400 to 600 feet south of the intersection.

Again plaintiff testified, 'I got my car in motion, being he was down there, by that time, maybe 300 or 400 feet, I don't know just how far he was, maybe 250, but he was anyways * * * he was down about the slow sign, is where he was, the last time I looked. * * * Whatever that slow sign measures, that is about where he was * * *. I started on across the intersection at, of course, a slow rate of speed, from a standstill. * * * I was looking to the east * * *.' Some pedestrians were 'walking around the intersection * * * there was a car coming from the east headed west on * * * White Eagle Road.' Plaintiff was watching to see 'whether this car was going to make a left-hand turn or right-hand turn * * * I saw he was going to make a right-hand turn onto Chrysler Road and about the time I saw that, why, I got hit.'

As stated, plaintiff testified he had stopped at the stop sign. His witness, Husong, said he was of the opinion that plaintiff stopped; at least he did everything but come to a complete stop. The witness, Husong, further testified defendant's automobile was moving 55 to 60 miles per hour--it 'had slackened its speed but very little.' Plaintiff testified he moved 40 or 45 feet (from the point where he had stopped) to the point of collision. He was moving 10 or 15 miles per hour when the cars collided. His witness, Caldwell, testified that, having proceeded from a standstill and when plaintiff was moving at 3 miles per hour, plaintiff could have stopped in a little less than six feet; at 5 miles per hour, in about nine feet; and at 7 miles, in a little over thirteen feet.

Plaintiff said he looked northwardly, and then to the southward, and saw defendant's car approaching. 'I had plenty of time to get across this intersection, I thought.' He then looked eastwardly and started across; he pursued a 'straight course,' gradually increasing his speed (to 10 or 15 miles an hour); he did not again look southwardly until an instant before the collision. Just before the collision defendant swerved his Plymouth slightly to the right. The left front end of defendant's Plymouth struck the right front end of plaintiff's Ford.

It was daylight at 7:40 o'clock in the morning of March 23d. The weather was clear and the pavements were dry. At the time, there were no buildings or other objects which in anyway obstructed a view across the area southwest of the intersection. The terrain around the intersection is level. Plaintiff was quite familiar with the intersection. He had been over it 'practically every morning.' An eastbound traveler on White Eagle Road, while moving the last 200 feet in approaching the intersection at Chrysler Road, had an unobstructed view down Chrysler to the southward for a distance of over a quarter of a mile.

In reviewing this cause we are ignoring the whole of the testimony of plaintiff's witnesses Everage and Jones. We think this is a case wherein justice requires us to take judicial notice of the records in the cases of Osborne v. Purdome (Sympson v. Purdome and Cabbell v. Purdome), Mo.Sup., 244 S.W.2d 1005.

The fact that plaintiff in approaching Chrysler Road was confronted by a stop sign is to be considered in determining his contributory negligence, whether or not the fact would be controlling. Keir v. Trager, 134 Kan. 505, 7 P.2d 49, 81 A.L.R. 181. The defendant, in moving north on Chrysler, was approaching from plaintiff's right. This circumstance, and the stop sign, should have alerted plaintiff to a realization that defendant in approaching might be entitled to priority of passage across the intersection. Hughes v. Hudson-Brace Motor Co., 111 Kan. 397, 207 P. 795; Koger v. Keller, 120 Kan. 196, 243 P. 294; Keir v. Trager, supra. There were other circumstances observed by plaintiff, according to his testimony. They were the circumstances of a third vehicle coming from the east on White Eagle Road in the circumstance of the presence of pedestrians somewhere on White Eagle Road in or near the intersection. The circumstances demanded of plaintiff commensurate precautions in an exercise of due care to protect himself from harm. The circumstances called for a reasonably careful estimate of the entire situation, including the position and progress of defendant's vehicle, before plaintiff, who was in a position of safety, moved out into the pathway of defendant's approaching car.

Whether plaintiff, approaching the intersection, could safely pass into the intersection and across the pathway of defendant's car in large measure depended upon how far defendant's vehicle was from the intersection and the rate of speed at which it was approaching. The fact that a defendant, because of a rule of statute or ordinance or practice concerning the right of way, may be a favored traveler does not in all circumstances imply that a plaintiff is not justified in attempting to cross an intersection in front of a defendant's approaching vehicle. For example, plaintiff in the instant case was not obliged to await the passing of every automobile approaching from his right which might by some unexpected burst of speed beat him to the point where their paths might cross. Hughes v. Hudson-Brace Motor Co., supra; Spohn v. Southern Kansas Stage Lines Co., 142 Kan. 595, 50 P.2d 1001.

However, a plaintiff is not to be considered to have fulfilled his duty to exercise due care for his own safety when, in passing into and attempting to cross an intersection in front of an approaching vehicle, he merely looks, and,...